83 F.

3d 556
44 Fed. R. Evid. Serv. 456

UNITED STATES of America, Appellee,

v.
Anthony PIPOLA, Defendant-Appellant.
No. 490, Docket 95-1264.

United States Court of Appeals,

Second Circuit.
Argued Nov. 21, 1995.
Decided April 29, 1996.

John L. Pollok, New York City (Michael S. Pollok, Daniel E. Katcher,

Hoffman & Pollok, New York, New York, of counsel), for DefendantAppellant.
Mark W. Lerner, Assistant United States Attorney, Brooklyn, New York
(Zachary W. Carter, United States Attorney, Emily Berger, Assistant
United States Attorney, Eastern District of New York, Brooklyn, New
York, of counsel), for Appellee.
Before: CARDAMONE, WALKER, and PARKER, Circuit Judges.
CARDAMONE, Circuit Judge:

Defendant Anthony Pipola appeals from a May 4, 1995 judgment entered in the
Eastern District of New York following a jury trial before United States District
Judge Sterling Johnson convicting him of a robbery conspiracy to obstruct
commerce in violation of 18 U.S.C. 1951(a) (1994) (count one), of aiding and
abetting the obstruction of commerce by means of a robbery in violation of 18
U.S.C. 2(a), 1951(a) (counts two and four), and of aiding and abetting the
use or carrying of a firearm during a crime of violence in violation of 18 U.S.C.
2(a), 924(c)(1) (counts three and five). He is presently serving concurrent
97-month prison sentences for the robbery and conspiracy counts and
consecutive terms of 60 months and 240 months for each of the firearms
charges. The total term of imprisonment is 397 months.

The principal issue for us to decide is whether the defendant's conviction for
aiding and abetting the use and carrying of a firearm during a crime of violence
should be affirmed. That is, we must decide whether Pipola acted simply as a
cheerleader, egging on his co-conspirators to commit the robberies, or whether
he actively assisted the other defendants in their use of firearms during the
crimes they committed after leaving his house all-armed, so that his assistance
facilitated the successful achievement of this additional offense. We conclude
that Pipola performed the latter, not the former, role. Hence, we affirm.

FACTS
A. The Two Robberies
3

The charges against defendant and six other defendants arose in connection
with two armed robberies, one on September 21 and the other on September 26,
1992, during which cash and checks were taken from employees of Anchor
Armored Delivery, Inc. (Anchor). The earlier robbery took place outside the
Dubovsky & Sons warehouse on Otto Road in Glendale, a neighborhood in
Queens County, New York. The later crime occurred at Citibank on
Metropolitan Avenue, in Ridgewood, Queens.

1. Early Failures
4

In the summer of 1992, before the September robberies occurred, Pipola

suggested to some of his co-conspirators the possibility of robbing armored
vehicles. After two scouting trips to observe the Dubovsky & Sons location,
Pipola and several of the other defendants went to the warehouse in two cars.
During that visit, Pipola slightly modified the robbery plan and, in anticipation
of the appearance of the armored vehicle, handed a pistol to co-conspirator
James Loizzo. That robbery attempt was aborted when the armored vehicle
failed to appear.

Pipola then enlisted defendant Steven Small's help in late August 1992 for a
planned robbery at the Metropolitan Avenue office of Citibank. Small testified
that his role was "to supply a getaway car, a gun, a police scanner, and walkietalkies." When Pipola also asked Small if he had any friends who would
participate, Small recruited defendant Thomas Donohue.

When--in accordance with Pipola's instructions--Small, Donohue, and

Donohue's brother went to Pipola's house in early September, Small spoke with
Pipola privately and was told to follow defendant Don Louis "Dominick"
Martorella to the bank on Metropolitan Avenue, where he and Martorella were

to wait in a pre-arranged location. The plan was for the Donohues to lie in wait
close to the bank and intercept the guards once they exited the armored truck.
Small gave Donohue a .22 caliber pistol to use in the hold-up. Because
Martorella and Small chose the wrong spot, they did not see the armored truck
arrive and the four defendants were forced to return to Pipola's residence
empty-handed. A similar attempt by Small and the Donohue brothers to rob the
bank was equally unsuccessful.
2. Dubovsky Warehouse Robbery
7

Meanwhile, Pipola, undeterred by the earlier failed attempt to rob the armored
vehicle at the Dubovsky & Sons warehouse, brought defendants Loizzo, Small,
Donohue, and Martorella together at his house to discuss that target. During the
discussions Small was told that he was to play the same role as he had for the
aborted Citibank robbery--supplying a gun, scanner, and walkie-talkies, and
bringing Donohue. When the group convened at Pipola's residence on
September 20, it was decided that the robbery would take place the next day.
Donohue arrived at Small's house on the day of the robbery and picked up two
pistols: a .22 caliber pistol belonging to Small and Donohue's own .380 caliber
pistol. After purchasing walkie-talkies, Small met Donohue, Loizzo, James
Rogers, and Martorella at a McDonald's restaurant. Martorella and Loizzo had
just come from Pipola's house, where they had discussed the plan with Pipola.
The entire group then proceeded in two cars to the Dubovsky warehouse.

Loizzo testified that he and Donohue, wearing ski masks and brandishing guns,
robbed the Anchor guards upon their arrival at the warehouse. Defendant
Rogers, who also wore a mask, took the bag of money from one of the guards.
Small and Martorella waited in other vehicles near the scene. Loizzo,
Martorella, and Rogers went from the scene of the robbery to Pipola's house
where Pipola opened the bag and distributed shares of the crime's proceeds to
the participants. Small and Donohue also returned to Pipola's place that day and
discussed the robbery, and later collected their share of the stolen money from
Martorella.

3. Citibank Robbery
9

On September 25, 1992 Small and Donohue again went to Pipola's house,
where they met with Pipola and Martorella to discuss the Citibank robbery.
Small and Martorella were to take up positions in their vehicles near the bank;
Donohue and Rogers were to wait near the deposit box. Small testified that
although he was supposed to supply a gun, the others still had his gun from the
September 21 robbery. Pipola, Martorella, Small, Donohue, Rogers, and Mark

Jacobowitz met on the day of the Citibank robbery and finalized the plan.
According to defendant James Rogers' testimony at trial, Pipola told the others
that Jacobowitz--a Pipola associate who had not previously been involved-"was just going to drive around, more or less keep tabs on everybody and make
sure everything [went] okay." After Pipola ascertained that everyone was
ready, the other defendants left Pipola and drove to Metropolitan Avenue in
three different vehicles, including a stolen getaway car. Shortly after the
robbers took up their positions, the armored vehicle appeared. Rogers and
Donohue approached the two guards, pointing their weapons. After disarming
one of the guards, they took a bag of money and escaped.
10

Following the commission of this crime, Small picked up Rogers and Donohue
and brought the money to Pipola, who again divided the proceeds into shares
for the various defendants. A few days later, several of the conspirators met
twice at Pipola's house, drinking first to "a job well done" and later receiving a
warning from Pipola not to spend the money or talk about the robberies.

B. The Arrests, Trial, and Conviction

11

Fingerprints taken from the getaway car abandoned after the Dubovsky robbery
led to the identification of defendant James Rogers. James Loizzo then became
a confidential informant. The other conspirators were thereafter arrested and
charged. The six co-conspirators--Loizzo, Rogers, Small, Donohue, Martorella,
and Thomas Nocella--entered guilty pleas. Pipola stood trial and was convicted
before a jury.

12

At trial, cooperating witnesses Small, Loizzo, and Rogers described the roles of
the participants, including Pipola, as explained earlier. The government also
produced the Anchor employees who witnessed the crimes, tapes of
conversations in which Pipola incriminated himself, and telephone records
reflecting communications between the conspirators. Jose Ledesma, an Anchor
guard, testified that on September 21, 1992 he was attacked by three men as he
exited the Dubovsky & Sons warehouse. Two of the assailants threatened him
and his partner with guns, and took a bag containing checks and cash. Jose
Lugo, another Anchor guard, described the September 26 robbery, stating that
two men armed with handguns forcefully took currency that he and his partner
were delivering to Citibank.

13

Pipola was convicted of all five counts. On appeal he contends the jury was
improperly charged with respect to the aiding and abetting the use or carrying
of firearms, the evidence produced against him was insufficient to support his
convictions on those counts, and the trial court erred in admitting evidence of

previous transactions involving him and his co-conspirators. We discuss each of

these contentions in order.
DISCUSSION
I The Contested Jury Charge
A. Charge of Aiding and Abetting
14

It is Pipola's argument that the jury instruction with respect to aiding and
abetting the use or carrying of a firearm was inconsistent with the rule laid
down in United States v. Medina, 32 F.3d 40 (2d Cir.1994). Because Pipola did
not object at trial to the charge he now challenges on appeal, his only hope for
relief is in Rule 52(b) of the Federal Rules of Criminal Procedure, the "plain
error" rule. But our authority to reverse for errors not urged to the trial court is
narrow indeed. See United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct.
1770, 1776-77, 123 L.Ed.2d 508 (1993). First, of course, there must be an
error; absent a valid waiver by defendant, a trial judge's deviation from a legal
rule is considered an error. Id. at 732-33, 113 S.Ct. at 1776-77. Second, the
error must be plain, that is, one obviously wrong in light of existing law. Id. at
734, 113 S.Ct. at 1777-78. Third, the error must have affected the defendant's
substantial rights, which ordinarily means that it must have prejudiced him. Id.
The challenged instruction was as follows:

15

In Counts Three and Five the defendant is also charged with aiding and
abetting, counseling, commanding, inducing or procuring the offense of
carrying a firearm a [sic ] crime of violence.

16

.... I have already instructed you, in connection with the crimes charged in
Counts Two and Four, on the requirements for finding a defendant guilty as an
aider and abettor.

17

.... I instruct you that to find a defendant guilty as an aider and abettor of Counts
Three and Five, you must find beyond a reasonable doubt that the defendant
had knowledge that a firearm would be used or carried during and in relation to
the crimes charged in Counts Two and Four.

18

Before giving this charge, the trial judge had instructed the jury regarding the
counts of aiding and abetting the robberies (counts two and four), explaining, in
substance, that the government must prove beyond a reasonable doubt that

someone other than the defendant committed the robberies and that the
defendant aided and abetted the commission of such underlying crime.
19

The trial court went on to state that the defendant must have knowingly and
willfully facilitated or encouraged the commission of the crime by some act or
omission, and that the "mere presence of the defendant at the scene of a crime
or acquiescence ... in the criminal conduct of others, even coupled with the
knowledge that the crime is being committed, is not sufficient to establish
aiding and abetting." It also set forth the substantive requirements for liability
under 18 U.S.C. 924(c) for using or carrying a firearm in relation to a crime of
violence.

B. Law of Aiding and Abetting

20

Under the terms of 18 U.S.C. 2(a) (1994), "[w]hoever commits an offense

against the United States or aids, abets, counsels, commands, induces or
procures its commission, is punishable as a principal." To be convicted of
aiding and abetting, the defendant must have taken some conscious action that
furthered the commission of the underlying crime. See United States v.
Dickerson, 508 F.2d 1216, 1218 (2d Cir.1975). The government must therefore
prove the underlying crime was committed by someone other than the
defendant and that the defendant himself either acted or failed to act with the
specific intent of advancing the commission of the underlying crime. See
United States v. Labat, 905 F.2d 18, 23 (2d Cir.1990).

21

To show specific intent the prosecution must prove the defendant knew of the
proposed crime--suspicion that it might occur is not enough--and had an interest
in furthering it. See United States v. Wiley, 846 F.2d 150, 154 (2d Cir.1988). In
sum, to prove the act and intent elements for aiding and abetting the
commission of a crime, the evidence must demonstrate that the defendant
joined and shared in the underlying criminal endeavor and that his efforts
contributed to its success. See United States v. Zambrano, 776 F.2d 1091, 1097
(2d Cir.1985).

22

The crime underlying counts three and five in the present case is a violation of
18 U.S.C. 924(c): "[w]hoever, during and in relation to any crime of violence
... uses or carries a firearm" commits a crime. Robbery is a "crime of violence"
under the statute. See 924(c)(3). In Medina we addressed the specific
question of whether a defendant's knowledge that a gun will be used in the
underlying offense is alone sufficient to support a conviction for aiding and
abetting a violation of 924(c). We held that it is not. Medina, 32 F.3d at 46.
Roberto Medina had recruited one Lopez to rob Medina's former employer, and

Lopez enlisted the assistance of two other persons. In arguing that this evidence
was sufficient to support an aiding and abetting charge against Medina, the
government relied on proof that Medina in a discussion with Lopez referred to
the robberies as "stickups," offered to supply Lopez with a gun, and actually
gave Lopez a revolver before the robbery. Id. at 45.
23

Because aiding and abetting requires a defendant's conscious assistance in the

commission of the specific underlying crime, we held that none of the actions
taken by Medina was sufficient. Id. There must be proof, we said, that the
defendant's actions directly facilitated or encouraged either the use of or the
carrying of a firearm. Hence, although Medina knew that a gun would be used
in the robbery, there was no evidence he prompted or induced such use. Id. The
gun he supplied was never used because Lopez, who was a confidential
informant, actually gave the firearm to a government agent before the robbery
was attempted. Id. at 43, 45. Even though Lopez' recruits carried guns during
the robbery's commission, no evidence suggested that Medina promoted their
use. Because the accomplices' use of those guns was "a foregone conclusion"
and they were not told of Medina's offer to supply a gun, Medina could not be
guilty of facilitating or encouraging their use. Id. at 46.

C. Review of Instant Jury Charge

24

The jury instructions in the present case, though not a model of clarity,
correctly track the law set forth in Medina. In evaluating a challenge to a jury
instruction, an appellate court must focus first on the specific language of the
charge. See California v. Brown, 479 U.S. 538, 541, 107 S.Ct. 837, 839, 93
L.Ed.2d 934 (1987); United States v. Coyne, 4 F.3d 100, 113 (2d Cir.1993),
cert. denied, --- U.S. ----, 114 S.Ct. 929, 127 L.Ed.2d 221 (1994). To determine
if the challenged instruction passes muster, the reviewing court must next
examine the entire charge to see if--looked at as a whole--it conveyed to the
jury a correct view of the law. Brown, 479 U.S. at 541, 107 S.Ct. at 839. When
jury instructions are susceptible to more than one possible interpretation, our
task is to determine whether there is a reasonable likelihood that the jury
applied them in a way that deprived defendant of his rights. Boyde v.
California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1197-98, 108 L.Ed.2d 316
(1990); see Estelle v. McGuire, 502 U.S. 62, 72 & n. 4, 112 S.Ct. 475, 482 & n.
4, 116 L.Ed.2d 385 (1991) (reaffirming Boyde standard as a "single standard of
review for jury instructions"); United States v. Birbal, 62 F.3d 456, 462 (2d
Cir.1995) (applying "reasonable likelihood" standard to direct review of federal
conviction).

25

Defendant urges that the charge as given was in error because it instructed the

jury that Pipola could be guilty simply because he knew that a firearm would
be used or carried during the two robberies. More particularly, he maintains
that the instruction omitted the requirement of an act directly promoting the
firearms violation, as opposed to an act merely promoting the general criminal
endeavor. See Medina, 32 F.3d at 45. Pipola further asserts that his counsel's
failure to object to the instruction at the trial should be excused because a
supervening decision--Medina--changed the law of this Circuit. We reject these
arguments.
26

The trial court concededly instructed the jury--with respect to counts three and
five--that knowledge that a gun would be used was necessary to establish
liability as an aider and abettor. However, nowhere in the instructions did the
district court charge that knowledge alone was sufficient. It explained that in
evaluating those counts the jury must apply the general aiding-and-abetting
instructions given with respect to the two counts of aiding and abetting the
obstruction of commerce by robbery (counts two and four). These instructions
correctly required the jury to find that someone committed the underlying
crime--in the case of counts three and five, the relevant 924(c) firearms
offense--and that defendant knowingly facilitated the commission of the offense
by some act or omission. In addition, the jury was specifically cautioned that
defendant's presence at the crime scene or his acquiescence in the criminal
conduct of others, even joined with knowledge that the crime would be
committed, would not support a conviction for aiding and abetting.

27

Although when viewed in isolation, the instruction setting forth the knowledge
requirement did not state the elements of aiding-and-abetting completely, we
think the instructions as a whole "delivered a correct interpretation of the law."
Brown, 479 U.S. at 541, 107 S.Ct. at 839. Defendant's argument takes the
instruction that knowledge is required out of context and ignores the fact that
the general instructions were explicitly incorporated into the charge. In addition
to knowledge that a firearm will be used, Medina simply requires that there be
an act or omission promoting the use of the firearm. The trial court's
instructions effectively communicated this requirement.

28

In our recent decision in United States v. Masotto, 73 F.3d 1233 (2d Cir.1996),
a defendant convicted of robbery appealed his conviction of aiding and abetting
the carrying or use of a firearm. Masotto argued, as does the defendant here,
that the trial court erroneously instructed the jury that liability could be based
on " 'mere knowledge' that members of the crew might use firearms without
proof that [the defendant] 'performed some act that directly facilitated or
encouraged the use or carrying of a firearm.' " Id. at 1240 (citing Medina, 32
F.3d at 45). We turned this challenge aside, holding that the general

instructions on liability as an aider and abettor required the jury to find more
than knowledge: the jury was required to find that all the elements of the
underlying firearms offense were committed by some person and that the
defendant participated in the commission of the offense. Id. at 1240. The instant
case is indistinguishable from Masotto. Read as a whole, the instructions
effectively explained that the defendant must have directly facilitated the
commission of the firearms offense. Therefore, there is no reasonable
likelihood that the conviction was based on an erroneous view of the law.
29

Defendant thinks plain error review should be less stringent in the present case
because an intervening decision changed settled law of this Circuit. See United
States v. Viola, 35 F.3d 37, 41-42 (2d Cir.1994), cert. denied, --- U.S. ----, 115
S.Ct. 1270, 131 L.Ed.2d 148 (1995). In such cases, it is the government that has
the burden of showing that defendant's substantial rights were not affected. Cf.
Olano, 507 U.S. at 732-34, 113 S.Ct. at 1777 ("We need not consider the
special case where the error was unclear at the time of trial but becomes clear
on appeal because the applicable law has been clarified."). Defendant believes
that Medina changed--or at least clarified--the requisite elements of aiding and
abetting a violation of 924(c). However, because in our view the jury
instructions in the case at hand did not constitute error, we need not reach the
prejudice component of the plain error inquiry.

II Sufficiency of the Evidence

30

Pipola next avers that the evidence was insufficient to support liability for
aiding and abetting the carrying or use of a firearm in connection with a crime
of violence. A defendant challenging the sufficiency of the evidence bears a
heavy burden because in reviewing such a claim, the evidence is viewed in the
light most favorable to the prosecution, see Glasser v. United States, 315 U.S.
60, 80, 62 S.Ct. 457, 469-70, 86 L.Ed. 680 (1942), and reasonable inferences
and credibility determinations are to be drawn in its favor. See United States v.
LaPorta, 46 F.3d 152, 162 (2d Cir.1994). When the evidence, viewed in this
light, may be said to convince any rational trier of fact that the defendant is
guilty beyond a reasonable doubt, the conviction must be upheld. See Jackson
v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979);
United States v. Stanchich, 550 F.2d 1294, 1299 (2d Cir.1977) (Friendly, J.).

31

Here the evidence was sufficient to convict Pipola of aiding and abetting the
use of a firearm in connection with both robberies. We are unable to agree with
defendant's suggestion that the evidence in his case was weaker than that in
Medina. In Medina, 32 F.3d at 42, the proof was found insufficient because it
did not show an "act that specifically aided and abetted the use or carrying of a

gun during the attempted robbery" and because Medina's plans for the robbery
did not include a gun that was actually carried or used. In the instant case,
however, the proof permitted the jury to infer that Pipola specifically
encouraged the use of firearms in the robberies.
32

Co-conspirator Small's testimony concerning the August 1992 conversation-during which Pipola recruited him for the Citibank robbery--allowed the jury to
conclude that Pipola delegated to Small the task of providing a gun. Small
recounted how he was told to play the same role, including the delivery of a
gun, for the Dubovsky robbery, and said that his role in the latter robbery was
discussed at Pipola's house. Because there was considerable evidence that
Pipola made planning decisions as the leader of the group, the jury was entitled
to infer that it was defendant's aim to encourage Small to make a gun available
when the crimes were committed. Moreover, Small testified that he discharged
his assigned task by arming Donohue, one of the gunmen, on the morning of
the September 21 robbery. As a result, Pipola's acts related directly to the
firearm that was actually used in the first robbery.

33

Pipola further insists that the evidence regarding the second robbery is
insufficient, even if the count of aiding and abetting the use of a firearm in the
first robbery is upheld. Again, the testimony permitted the inference that
Pipola, relying on a tip from Martorella, devised a plan to rob an armored truck
at Citibank's Metropolitan Avenue office. That plan, as evidenced by the
conversation in which Pipola assigned to Small the role of providing a weapon,
included the carrying of firearms by the participants. By giving Small the task
of supplying a gun, Pipola "acted ... with the specific purpose of bringing about
the underlying crime." Labat, 905 F.2d at 23. The proof showed that Donohue,
instead of returning Small's .22 caliber pistol after the Dubovsky robbery,
retained it for the Citibank robbery. Pipola's actions placing Small in charge of
arming Donohue demonstrated that he "joined the venture, shared in it, and that
his efforts contributed towards its success." Zambrano, 776 F.2d at 1097.

34

Pipola now argues that there was no proof that he directly assisted in the use of
the guns, gave weapons to the gunmen, or allowed weapons to be exchanged at
his house. This argument mistakenly assumes that the only way to aid another's
use of a gun is to deliver it personally. Instead, under 18 U.S.C. 2 and
924(c), all that is required to prove aiding and abetting is some act directly
facilitating or encouraging the use or carrying of a firearm, as opposed to only
having knowledge that a firearm will be used in the robbery. The evidence in
the present case was sufficient for such purposes: Pipola designed the plans for
two robberies and these plans, including the use of firearms, were effectuated
through the acts of his co-conspirators.

35

Defendant's heavy reliance on Medina is misplaced. There the weapon supplied

by Roberto Medina was given to a detective before the attempted robbery; here
the pistols supplied by Small at the instigation of Pipola were used during the
commission of the crimes. Medina only knew a co-conspirator would carry a
gun; here there was proof Pipola acted to encourage the carrying of guns by his
co-conspirators. In Medina, the use of a gun was a foregone conclusion,
whereas in the present case using guns was an idea originated by defendant.
The proof at trial demonstrated that Pipola discussed the robberies with the
persons who carried them out, assigned particular roles to the various
participants, and actively assisted (through Small) in the carrying and use of
firearms. In short, Pipola failed to show the evidence was insufficient.

III Evidence of Other Wrongs

36

The final issue defendant raises is whether the trial court improperly admitted
evidence of crimes other than those charged, in contravention of Rule 404(b) of
the Federal Rules of Evidence. The challenged evidence consisted of testimony
by James Loizzo and Steven Small, Pipola's co-conspirators who cooperated
with the government. The trial court made a pretrial ruling on the admissibility
of proffered evidence of other crimes aimed to show Pipola's involvement in
the following activities with his co-conspirators: making various loans and
collecting debts, committing crimes including armed robberies and a burglary,
and using and selling stolen and counterfeit credit cards. Judge Johnson ruled
that such evidence was relevant because it helped explain the background of
the conspiracy and the development of the relationships between defendant and
the other conspirators; he also ruled that its probative value was not outweighed
by the possibility of unfair prejudice.

37

At the trial, Loizzo testified that in 1989, when he and Pipola first met, Pipola
agreed to loan him money to cover a debt to a drug dealer. Shortly thereafter,
Loizzo stated, he began to give Pipola "tips" about potential robbery or burglary
targets. Loizzo averred that before he knew Pipola very well, Pipola, acting on
a tip, arranged a burglary. Loizzo also declared that he and Pipola attempted to
rob a drug dealer and burglarize a house, all to no avail, but that Loizzo "earned
some respect" from Pipola when he finally deduced the location of the dealer's
cache.

38

Pipola also complains of testimony by Loizzo, along with tape-recorded

conversations, suggesting that Pipola and his co-conspirators made usurious
loans. In addition, defendant cites an instance where Loizzo testified that Pipola
sought information about drug dealers to rob. Moreover, Pipola asserts that
Small was improperly allowed to testify that he, Loizzo, Pipola, and others in

1991 robbed a warehouse in which marijuana was being grown.

39

Under Rule 404(b), "[e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in
conformity therewith," but such evidence may be admissible to show "proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident." Our inclusionary interpretation of the rule allows
evidence of other wrongs to be admitted so long as it is relevant and it is not
offered to prove criminal propensity. See, e.g., Berkovich v. Hicks, 922 F.2d
1018, 1022 (2d Cir.1991). One legitimate purpose for presenting evidence of
extrinsic acts is to explain how a criminal relationship developed; this sort of
proof furnishes admissible background information in a conspiracy case,
United States v. Lasanta, 978 F.2d 1300, 1307-08 (2d Cir.1992). Such proof
may also be used to help the jury understand the basis for the co-conspirators'
relationship of mutual trust, see United States v. Rosa, 11 F.3d 315, 334 (2d
Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1565, 128 L.Ed.2d 211 (1994).

40

When the government seeks to introduce such extrinsic evidence, the trial court
must first determine whether it is admissible under Rule 404(b). If so, it must
then determine whether the probative value of the evidence is substantially
outweighed by the risk of unfair prejudice. See Fed.R.Evid. 403. If the
evidence is ruled admissible, the trial court, when the defendant so requests,
must give a limiting instruction. See Fed.R.Evid. 105. Broad discretion resides
in the district court regarding the admissibility of evidence of extrinsic acts, see
Berkovich, 922 F.2d at 1022, and such rulings are reversed only for a clear
abuse of discretion. See United States v. Sappe, 898 F.2d 878, 880 (2d
Cir.1990). To find such an abuse we must be persuaded that the trial judge
ruled in an arbitrary and irrational fashion. See United States v. Pitre, 960 F.2d
1112, 1119 (2d Cir.1992).

41

The district court did not abuse its discretion in the present case. In its pretrial
ruling and at various times during the trial, it ruled the evidence was relevant as
background information to make the story of the crimes charged complete and
to enable the jury to understand how the illegal relationship between the coconspirators developed. The government undertook to show that Pipola played
a leadership role in organizing two armed robberies involving a number of
other individuals, each of whom performed assigned functions. The evidence of
prior illicit activities involving Pipola and his co-conspirators explained to the
jury how the relationship between Pipola and his underlings evolved. The
challenged testimony made the 1992 conspiracies to commit armed robberies,
in which Small and Loizzo also played key parts, more plausible.

42

This evidence was relevant and was offered for a purpose other than to show
propensity, and it therefore cannot be said to be an abuse of discretion to rule it
admissible under Rule 404(b). Nor can we see any reason to disturb the ruling
that the evidence was not unduly prejudicial. In addition to considering the
prejudicial impact of the evidence before the trial, the trial judge delivered
limiting instructions when the defendant's counsel so requested, warning the
jury not to infer from the evidence of other crimes that Pipola was guilty of the
conspiracy, the robberies, or the firearms charges. See Fed.R.Evid. 105. In
short, the district court's rulings under Rule 404(b) provide no basis for
overturning Pipola's convictions.

CONCLUSION
43

Accordingly, for the reasons stated, the judgment of the district court is
affirmed.